Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington, et al

Supreme Court Oral argument of Carter G. Phillips on behalf of the respondents on Wednesday, October 12, 2011:

MR. PHILLIPS: Thank you, Mr. Chief Justice, and may it please the Court:

I actually appreciate the clarification that your questions brought to this case, because I think there’s a bit of confusion that I’d like to try to clear up, although my — my colleague’s movement in terms of answering some of the questions left me a little bit perplexed as to exactly what the nature of their claims are.

The — the first question that it seems to me the Court should focus on is what policy is at issue here. And, obviously, since the class certification deals with one set of issues and the plaintiff’s claims deal with another set of issues, I think you have to be careful.

I think you have to focus on the policies that existed in 2005. That was the basis on which he was in fact searched under these circumstances. And the policy in Burlington was that — was primarily aimed, frankly, at health and tattoos, and the policy at Essex was aimed primarily at contraband and then secondarily at tattoos and health.

And the policy at Burlington was largely a — you come into prison, you give up your clothes they look through your clothes, you take a shower, they examine you fairly cursorily, but look at you, and then — then give you prison garb and move along your way.

CHIEF JUSTICE ROBERTS: I’m sorry. Is the shower and look at you cursorily — are those separate things? Or is it during the shower?

MR. PHILLIPS: It — it’s before or during.

CHIEF JUSTICE ROBERTS: Because your friend places a lot of significance on how close -­

MR. PHILLIPS: Right.

CHIEF JUSTICE ROBERTS: — the examination is. So, under that policy, how close was the examination?

MR. PHILLIPS: It almost certainly would have been about an arm’s length, because at that — I mean, the problem is if you’re exchanging clothes with somebody, you’re handing them clothes to change into, it’s sort of hard to be longer than arm’s length and actually get the clothes into his hand. So that -­

JUSTICE SCALIA: Two arms’ lengths. I mean, he could reach out, right?

MR. PHILLIPS: Okay. Two arms’ lengths.

(Laughter.)

CHIEF JUSTICE ROBERTS: Well, that’s not right. They could take -­

MR. PHILLIPS: But I’m not -­

CHIEF JUSTICE ROBERTS: That’s not right. You could take the clothes off, put them in a bin -­

MR. PHILLIPS: Right.

CHIEF JUSTICE ROBERTS: The person examines the bin.

MR. PHILLIPS: Right. And that’s actually what they do in Essex. In Essex, they do it that way.

The difference between Essex is that Essex, in fact, does have — I mean, part of the problem is terminological, all right?

CHIEF JUSTICE ROBERTS: Yes.

MR. PHILLIPS: You know, Burlington is basically a body visual observation, and the district court said that’s unconstitutional, that just observing at all is unconstitutional.

To some extent, it seems to me my — my friend here has given up that part of the district court’s decision, which — then clearly the court of appeals, to the extent it reversed that part, ought to be affirmed on that ground alone.

JUSTICE BREYER: Visual observation from more than 2 feet, or less than 2 feet?

MR. PHILLIPS: Right, although that — that was not the district court’s theory. The district court didn’t say 2 to 3 feet.

JUSTICE BREYER: Okay. What happened? Do we know? Was the search within 2 feet or not within 2 feet?

MR. PHILLIPS: Well, it depends on whose version of it.

JUSTICE BREYER: We don’t know.

MR. PHILLIPS: You have to remember, the district court granted summary judgment to the plaintiff in this case. So, you would have to — you would have to interpret — you’d have to give us the benefit of the interpretation, which was that it was more than 2 feet.

But the court of appeals reversed, of course, without regard to that, because the court of appeals said, look, if you — if you apply this Court’s decision in Bell v. Wolfish, it doesn’t matter, because you can engage in a much more intrusive true body cavity search, which frankly is more intrusive than even what Essex County asks — has — does in this case, because he wasn’t asked to bend over and to — and to have a body cavity anal search. What he was asked to do was to squat and cough, in the event that — because ordinarily that will cause the contraband then to fall out, and you can — and you can catch it under those circumstances.

So, this is — that’s sort of the context inwhich this issue comes up.

JUSTICE KAGAN: Mr. Phillips, if I could understand your position, you think that there’s no reasonable suspicion even for that more intrusive body cavity search; is that right?

JUSTICE KAGAN: And does it matter to you whether the person is being introduced into the general prison population, or would you also say that if the person is not being introduced into the general prison population? Do you still think that there’s no reasonable suspicion requirement?

MR. PHILLIPS: I would say, from my perspective, I think even — even if they weren’t going to be admitted into the general prison population, because the risks remain too substantial. But the truth is I don’t have to defend that argument, because both -­ both of these jails admit the — their inmates into the — into the general population 99.9 percent of the time.

JUSTICE SOTOMAYOR: Would a manual search -­

MR. PHILLIPS: So, that’s not a line we draw.

JUSTICE ALITO: Would you say that regardless of the offense for which the person is arrested? There have been some stories in the news recently about cities that have taken to arresting people for traffic citations. So, suppose someone is just arrested because they have a lot of tickets for being caught on speed cameras, let’s say. That person can be subjected to the searches that you’re describing?

MR. PHILLIPS: Yes, Justice Alito. I think the basic principle we’re asking for is that deference to the jails and — and to the administrators of the jails requires that this Court respect their judgment that you can’t make a distinction based on that specific individual; that whether somebody is a minor offender or a major offender, one, is never all that clear in the first place, and, two, isn’t a basis on which to distinguish the risks that it poses to the -­

JUSTICE BREYER: Try the ABA. The ABA is minor offenses, not drugs, not violence, and there you have to have reasonable suspicion. Now, I’ve read through the briefs, and I can’t find a lot of contrabanders that were caught in that category. In fact, my law clerk thinks it’s one out of 64,000 or less. So — so, what is the justification for a rule to avoid reasonable suspicion in that category?

MR. PHILLIPS: If — if you look at the expert testimony that was before the court, in the district court in this case, both the expert testimony of the plaintiff and the expert testimony of the defendant — this is at 348a of the joint appendix. It
says “a greater presence of contraband amongst those individuals that have minor offenses.” That’s his -­ that’s their expert’s characterization, that minor offenders bring in more contraband than major offenders.

Our experts said misdemeanants can be more dangerous and more likely to bring in contraband -­

JUSTICE BREYER: It’s a conclusion -­

MR. PHILLIPS: Yes.

JUSTICE BREYER: — and we have a lot of practical experience because different States have different rules, and San Francisco came in with I think the toughest on your side, for your side. I just say, looking through that, it’s very hard to find somebody who really was in this minor offender category, who really was found to have contraband. So, what should I look at to show that my initial reaction from a quick reading is wrong.

MR. PHILLIPS: Well, I mean -­

JUSTICE BREYER: I mean, do I just say this is a -­

MR. PHILLIPS: — I think you can go back to Bell v. Wolfish, where this Court said that the fact that there is not a lot of contraband being found may be a testament to the effectiveness of the deterrent.

JUSTICE SOTOMAYOR: So, why do we change the policy? In Bell, we found that the policy was successful. Even though there were searches, contraband still got in. So, virtually every circuit — in practice, the Federal system — have been following this reasonable suspicion for minor crimes, and they’ve been fairly successful. So, why do we change the constitutional rule to let them do more?

MR. PHILLIPS: Well, I think that -­

JUSTICE SOTOMAYOR: To invade more.

MR. PHILLIPS: Well, I mean, I think, first of all, anybody who thinks that the problems of contraband are less serious today than they were in 1978 is — is ignoring reality.

JUSTICE SOTOMAYOR: I — I understand contraband is serious, but most of the studies point to it not being on intake, but coming in through guards, coming in through contact visits.

MR. PHILLIPS: Yes.

JUSTICE SOTOMAYOR: The great cause today is that from corrupt correction officials.

MR. PHILLIPS: Well, I mean, we can debate that. But, Justice Sotomayor, it seems to me that the– that the fundamental principle that ought to undergird the entirety of the Court’s analysis here comes out of Turner v. Safley and that line of cases, where -­

JUSTICE SOTOMAYOR: Counsel, could I ask you something just in terms of your rule? I think your brief says your rule is you’re not entitled constitutionally to any right of privacy in prison.

MR. PHILLIPS: No.

JUSTICE SOTOMAYOR: If that’s the case, are you saying that if the prisons decide on a manual search, every prisoner who comes in, correction officers can manually check their cavities, is that -­

MR. PHILLIPS: No, Justice Sotomayor. No.

JUSTICE SOTOMAYOR: So, there is some privacy right?

MR. PHILLIPS: Yes, I can be clear about this. It seems to me that Hudson v. Palmer and the -­ and the history of the Fourth Amendment clearly suggest that there is no reasonable expectation of privacy of being viewed naked in a prison. And, therefore, the ordinary Burlington approach of having somebody take a shower and looking at him or her naked for tattoos and health and incidental contraband, clearly constitutional, clearly doesn’t even raise a Fourth Amendment issue.

When you get beyond that point and start to begin the — what Essex does, which is not a true anal cavity search but simply an anal-focused and genital-focused search, I think that is subject to the Turner v. Safley and/or the Bell v. Wolfish standard.

JUSTICE SOTOMAYOR: Can we go back to Justice Alito’s question? Isn’t one of the factors that we look at under the Fourth Amendment reasonableness? And should we be thinking about the fact that many of these people who are now being arrested are being put into general populations or into jails, sometimes not just overnight but for longer periods of time, like this gentleman, for 6 days before he sees a magistrate?

Should we be considering a rule that basically says your right to search someone depends on whether that individual has in fact been arrested for a crime that’s going to lead to jail time or not, whether that person’s been presented to a magistrate to see whether there is in fact probable cause for the arrest and detention of this individual? I mean, there is something unsettling about permitting the police to arrest people for things, like kids who are staying out after curfew with no other — based on probably nothing else.

MR. PHILLIPS: Justice Sotomayor, I think what is disturbing about — about this case is, in fact, the — that he was arrested under circumstances in which he candidly shouldn’t have been arrested as a matter of State law. I understand that. But I think to change the constitutional rule and to change the Turner v. Safley and Bell v. Wolfish standards and ignore what the underlying inquiry should be here, which is these policies which apply across the board impinge
constitutional protections, but nevertheless represent -­

JUSTICE SOTOMAYOR: But what -­

MR. PHILLIPS: — the good-faith judgment of our jailers.

JUSTICE SOTOMAYOR: But what are we doing with the presumption of innocence? That’s also a constitutional right. And so, shouldn’t the degree to which a search is permitted be conditioned in some way on whether or not this person has been presented to a magistrate?

MR. PHILLIPS: I — if you ask me the way I would analyze it, I would — if you want to adopt a different set of standards about who ought to be arrested and who ought to be taken to jail, that’s fine. I understand that.

JUSTICE SOTOMAYOR: Well, I mean -­

MR. PHILLIPS: But I think once you’re talking about actually bringing someone into the jail to be admitted into the general population and what is without question one of the most dangerous, most risky environments, in that context I would hope that this Court, rather than asking individual jailers to make decisions on the basis of — where they clearly will not have the kind of information you’re asking them to make and where if they make a judgment wrong in either direction, all it means is litigation. Either they -­

CHIEF JUSTICE ROBERTS: I thought — I thought your friend said that is exactly what you do with respect to the visual body cavity search, reasonable articulable suspicion, under the new policy.

MR. PHILLIPS: That’s what we do with a true anal body cavity search. What we — I mean, we changed the policy, to be sure.

CHIEF JUSTICE ROBERTS: Right.

MR. PHILLIPS: We changed the policy because of litigation concerns.

CHIEF JUSTICE ROBERTS: Well, now, as I understand it, with respect to -­

CHIEF JUSTICE ROBERTS: Okay. And you don’t require that with respect to simple strip search?

MR. PHILLIPS: Right.

CHIEF JUSTICE ROBERTS: Okay. So, you agree with your friend that the only thing at issue here is how close the guard is going to be to the individual who you have no reasonable suspicion to think is different than anybody else during a simple strip search?

MR. PHILLIPS: Well — no -­

CHIEF JUSTICE ROBERTS: You want — he says 2 feet is too close; 5 feet or whatever is okay. You want to go to 2 feet. You don’t want to have to stand back to 6 feet. That’s all the case comes down to?

MR. PHILLIPS: I don’t — well, I mean, you can characterize it that way. I mean, I think the better way to think about it is that what Essex wants, what — you know, what Essex policy permitted it to do was to examine the -­

CHIEF JUSTICE ROBERTS: I’m not interested in what Essex policy permitted it to do in the past. I’m looking at the new policy, all right? Under the new policy, you have reasonable articulable suspicion -­

MR. PHILLIPS: Well, see, that’s the problem, is that the language there is different. Because the — the truth is that the line that the new policy draws is between a true — what I — what I think Bell v. Wolfish was describing, where you ask the inmate to bend over and expose his or her anus for a cavity search. On that score, that’s what — we don’t do that. But we do, in fact, ask -­

JUSTICE KAGAN: And, Mr. Phillips -­

CHIEF JUSTICE ROBERTS: I’m sorry. Could I finish and find out what you do? You said: We don’t do that. We do — what?

MR. PHILLIPS: Right. What we do is ask the individual to lift his genitals and to squat and cough.

CHIEF JUSTICE ROBERTS: Okay. So, you do more than a simple strip search.

MR. PHILLIPS: Right, slightly more than a simple strip search.

JUSTICE SCALIA: But, Mr. Phillips, there -­there -­

MR. PHILLIPS: But I don’t think that’s the line to draw. I think -­

JUSTICE SCALIA: There is still an issue in the case beyond the ordinary visual inspection, and that is this: Even though you have changed your policy now -­

MR. PHILLIPS: Right, we’re still liable.

JUSTICE SCALIA: — the question remains whether that change in policy was constitutionally required, so that when — when you treated the — the plaintiff in a different fashion under the old policy, that was a violation of the Constitution.

Doesn’t — doesn’t that question remain in the case?

MR. PHILLIPS: That question clearly remains in the case. I’m not -­

JUSTICE SCALIA: Okay. So, there are two questions.

MR. PHILLIPS: Right.

JUSTICE SCALIA: So, we have to consider both, the pure visual and also the inspection for contraband.

MR. PHILLIPS: Right. And all I’m — all I — the only point I’ve been trying to make here is that if you — if you look at the way the district court analyzed the case, the district court split it up, and it’s the basis of the class distinction versus the -­

JUSTICE KENNEDY: Does the record or common experience justify an argument that if you have the person who’s stopped just for a traffic ticket, but that person is going to be in custody for 5 or 6 days, that person might well prefer an institution where everyone has been searched before he or she is put into the population with -­

MR. PHILLIPS: Justice Kennedy, there actually is testimony in the record from the warden saying that in order to ensure everybody’s safety, we are better off with a blanket policy that says that
we’re going to engage in — in some form of the search.

Essex has a slightly more intrusive one. But it is all designed to accomplish the same thing. It’s not just designed to ensure against contraband and — and that. It’s designed to ensure that there isn’t somebody like Mr. Florence who’s going to end up being poked or otherwise -­

JUSTICE BREYER: Is there any evidence — I count seven or eight States anyway that have some variation of the reasonable suspicion rule like what they want, roughly. Is there any evidence at all that in those seven or eight States, there is more contraband being smuggled in?

MR. PHILLIPS: Well, there is the testimony in the record from their expert, who said that in Kentucky, there is today — the single biggest problem in Kentucky prisons and the biggest cause of death is drug overdose, which suggests that there’s a serious contraband issue in Kentucky. Kentucky is in one of those — is one of those — is inside one of the circuits that has had a reasonable suspicion requirement as a constitutional matter forever.

So, I would say there — yes, there is some evidence from which you could infer that it’s worse now than it was. But I would also ask the Court to rely on its common sense and its own — and what it essentially took judicial notice of in Bell v. Wolfish and Rutherford v. Black, which is this is a serious problem, and it is no less a serious problem today than it was more than 30 years ago, when the Court addressed -­

JUSTICE GINSBURG: Are there any limits -­ are there any constitutional limits, in your view? You say you didn’t attempt the kind of search that was done in Bell v. Wolfish. Is there any constitutional impediment to your doing so?

MR. PHILLIPS: I — I don’t believe that -­ my position would be, no, there isn’t a constitutional impediment, but -­

JUSTICE GINSBURG: So, there’s no -­

MR. PHILLIPS: — the balance would tip in favor of the — of the institution under those circumstances. I do think — obviously, there is a limit between a manual physical body cavity search, and that it seems to me, yes, I — that would — that would be a very different balance of the equation, and I — I suspect I would be very hard pressed to just — to convince five members of this Court that that’s the -­

JUSTICE SCALIA: You — you want us to write an opinion that applies only to squatting and coughing. Is that it?

MR. PHILLIPS: Well, you may want to write it slightly differently -­

JUSTICE SCALIA: Yes.

(Laughter.)

MR. PHILLIPS: — Justice Scalia. No, but what — but what I would really like is an opinion that recognizes that deference to the prisons and to their judgment is what’s appropriate under these circumstances, and that extends all the way to the Bell v. Wolfish line. The only difference being that I would like for the Court to analyze it under Turner v. Safley, in which — in which the analysis is — is this — you know, is there a logical nexus between the rule that the — that the prisons have and preventing a problem? And the answer is yes. And are there reasonable alternatives? And there, the answer is no.

If the -­

JUSTICE GINSBURG: You are saying that they can do the full — as far as the Constitution is concerned, all of these searches are permissible.

MR. PHILLIPS: All — clearly, all of our searches are permissible, and I would go -­

Bell v. Wolfish was not tied in its opinion itself to the fact that they -­

JUSTICE GINSBURG: But they did — they did stress that there was a visitor who could — who could give the inmate contraband. Bell v. Wolfish doesn’t -­ and I asked Mr. Goldstein whether we know whether the pretrial detainees in New York were searched that way on entry, and he said there’s nothing that shows one way or the other.

MR. PHILLIPS: Right. I think that’s — I think that’s correct. We don’t know. And, of course, part of the — and part of the empirical problem in -­ in that is that that facility had only been open for 4 months anyway. So, it was really going to be difficult, if you were going to adopt the policy they adopted in Bell, to insist on some sort of empirical proof.

JUSTICE KAGAN: The one significant difference between Bell and this case is that in Bell, there was a real opportunity for people to plan, to conspire together to bring in contraband. Here, you’re talking about somebody who’s arrested on the spot, there’s no opportunity for planning, for conspiracy with respect to contraband, is there?

MR. PHILLIPS: No, but the policy itself -­ may I answer the question?

The policy is aimed at all people, not just at Mr. Florence, and if you aim it at all people, there are people who self-report who’ve obviously got an opportunity to bring in contraband, and there are a lot of people who just get arrested and happen to have drugs or something on them and, rather than show those when they’re being stopped for a speeding ticket, will likely stick it in their pocket or put it somewhere else.